IN THE ARIZONA SUPREME COURT
STATE OF ARIZONA, ex rel. SHEILA
SULLIVAN POLK, Yavapai County
Attorney,
Petitioner,
v.
THE HONORABLE CELÉ HANCOCK,
Judge of the SUPERIOR COURT OF THE
STATE OF ARIZONA, in and for the
County of YAVAPAI,
Respondent Judge,
JENNIFER LEE FERRELL,
Real Party In Interest.
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S.Ct. No. CV-14-0084-PR
Court of Appeals No.
1 CA-SA 13-0292
Department E
Yavapai County Superior Court
No. P1300CR201300261
BRIEF OF AMICI CURIAE ARIZONA ATTORNEYS FOR CRIMINAL
JUSTICE AND NATIONAL ORGANIZATION FOR THE REFORM OF
MARIJUANA LAWS IN SUPPORT OF REAL PARTY IN INTEREST
David J. Euchner, No. 021768 Thomas W. Dean, No. 015700
[email protected] [email protected]
Sarah L. Mayhew, No. 029048 13201 N. 35th Ave., Suite B-10
[email protected] Phoenix, AZ 85029
33 N. Stone Ave., 21st Floor (602) 635-4990
Tucson, Arizona 85701 Attorney for National Organization
(520) 724-6800 for the Reform of Marijuana Laws
Attorneys for Arizona Attorneys
for Criminal Justice
i
TABLE OF CONTENTS
Page
TABLE OF CASES AND AUTHORITIES ............................................................. ii
INTERESTS OF AMICI CURIAE ............................................................................. 1
INTRODUCTION ..................................................................................................... 1
ARGUMENTS
I. YCAO’S position is precluded by the Voter Protection Act and it is
wholly unsupported by federal preemption doctrine ....................................... 4
II. The Oath of Office for Public Officials, when combined with the
2014 voter-enacted amendment to the Supremacy Clause of the
Arizona Constitution, expressly forbids State agents from using State
personnel and financial resources to uphold federal law when doing
so is contrary to the will of the Arizona electorate ........................................ 10
III. The AMMA bars government actors from taking “any” action to deny
patients access to medical marijuana. This precludes prosecutors from
including, and courts from honoring, special terms in plea agreements
coercing a “waiver” of rights under the AMMA, because such plea
provisions are illegal and unenforceable ....................................................... 13
CONCLUSION ........................................................................................................ 19
ii
TABLE OF CASES AND AUTHORITIES
CASES PAGES
1800 Ocotillo, LLC v. WLB Grp., Inc., 219 Ariz. 200, 196 P.3d 222 (2008) .......... 17
Ariz. Clean Elections Comm’n v. Brain, 234 Ariz. 322, 322 P.3d 139 (2014) ... 6, 13
Ariz. Early Childhood Dev. & Health Bd. v. Brewer, 221 Ariz. 467, 212
P.3d 805 (2009) ........................................................................................... 6, 8
Arizona v. United States, 132 S.Ct. 2492 (2012) ....................................................... 5
Cave Creek Unified School Dist. v. Ducey, 233 Ariz. 1, 308 P.3d 1152
(2013) ............................................................................................................... 8
Coy v. Fields, 200 Ariz. 442, 27 P.3d 799 (App. 2001) .................................... 14-15
Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) ............................ 5
CSA 13-101 Loop, LLC v. Loop 101, LLC, CV-14-0029-PR (Ariz. S. Ct.,
Dec. 31, 2014) ................................................................................................ 17
Dobson et al. v. State ex rel. Comm’n on Appellate Court Appointments, 233
Ariz. 119, 309 P.3d 1289 (2013) ................................................................. 8-9
Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d
518 (Or. 2010) ............................................................................................... 10
People v. Leal, 210 Cal. App. 4th 829, 149 Cal. Rptr. 3d 9 (2012) ...................... 6-8
People v. Mentch, 45 Cal. 4th 274, 85 Cal. Rptr. 3d 480 (2008) .......................... 6-7
People v. Trippet, 56 Cal. App. 4th 1532, 66 Cal. Rptr. 2d 559 (1997) .................... 7
Reed-Kaliher v. Hoggatt, 235 Ariz 361, 332 P.3d 587 (App. 2014) ................. 17-20
Shadis v. Beal, 685 F.2d 824 (3d Cir. 1982) ............................................................ 17
State v. Corno, 179 Ariz. 151, 876 P.2d 1186 (App. 1994) .................................... 16
iii
State v. Fisher, 176 Ariz. 69, 859 P.2d 179 (1993) ........................................... 15-16
State v. Murphy, 113 Ariz. 416, 555 P.2d 1110 (1976) ........................................... 14
State v. Oatley, 174 Ariz. 124, 847 P.2d 625 (App. 1993) ...................................... 16
State v. Patel, 160 Ariz. 86, 770 P.2d 390 (App. 1989) .......................................... 16
State v. Sanchez-Equihua, 235 Ariz. 54, 326 P.3d 321 (App. 2014) ................. 15-16
United States v. Carrillo, 709 F.2d 35 (9th Cir. 1983) ............................................ 14
United States v. Knights, 534 U.S. 112 (2001) ........................................................ 19
ARIZONA REVISED STATUTES
A.R.S. § 16-905 .......................................................................................................... 6
A.R.S. § 36-2802 .................................................................................................... 4, 9
A.R.S. § 36-2811 ........................................................................................ 3, 9, 19-20
A.R.S. § 36-2813 ........................................................................................................ 4
A.R.S. § 38-231 ........................................................................................................ 11
ARIZONA RULES OF CRIMINAL PROCEDURE
Rule 17.4(d) ............................................................................................................. 16
ARIZONA CONSTITUTION
art. II, § 3 ............................................................................................................ 12-13
art. II, § 13 ................................................................................................................ 11
iv
art. IV, pt. 1, § 1 ......................................................................................................... 8
OTHER AUTHORITIES
Restatement (Second) of Contracts § 178 .................................................................. x
Publicity Pamphlet for 1998 general election, Proposition 104,
http://www.azsos.gov/election/1998/info/pubpamphlet/Prop104.html
(last visited January 2, 2015) ......................................................................... 13
Publicity Pamphlet for 1998 general election, Proposition 105,
http://www.azsos.gov/election/1998/info/pubpamphlet/Prop105.html
(last visited January 2, 2015) ......................................................................... 13
Publicity Pamphlet for 2010 general election, Proposition 203,
http://azsos.gov/election/2010/info/PubPamphlet/english/prop203.pdf
(last visited January 2, 2015) ............................................................. 1, 3, 9, 10
General Canvass for 2014 general election, Proposition 122,
http://www.azsos.gov/election/2014/General/Canvass2014GE.pdf
(last visited January 2, 2015) ................................................................... 12-13
Yvette A. Beeman, Note, Accomplice Testimony Under Contingent Plea
Agreements, 72 Cornell L. Rev. 800, 824 (1987) .......................................... 15
1
INTERESTS OF AMICI CURIAE
Amicus curiae Arizona Attorneys for Criminal Justice (“AACJ”) has already
been granted leave to appear in this case in briefing and at oral argument.
Amicus curiae National Organization for the Reform of Marijuana Laws
(“NORML”) is a non-profit educational corporation organized in 1971 under the
laws of the District of Columbia, with its primary office located in Washington, D.C.
It has approximately 15,000 dues-paying members, 1.3 million internet-based
supporters, and more than 154 state-based chapters across the country, including a
state chapter and several local chapters in Arizona. NORML is a consumer and law-
reform advocacy organization that participates in the national debate over the
efficacy and reform of state and federal marijuana prohibition laws. Its interests in
this litigation are more fully set out in its Motion for Leave to file an Amicus Curiae
Brief filed this date.
INTRODUCTION
On November 2, 2010, Arizona voters passed Proposition 203, the Arizona
Medical Marijuana Act (AMMA). With the enactment of the initiative, qualified
Arizona residents were able to obtain patient registration cards and thereby granted
a new civil right to use marijuana medicinally. Marijuana was no longer to be
stigmatized, but was embraced as a valid and lawful medication for the treatment of
specific medical conditions. The language of the proposition was carefully
2
constructed to avoid potential pre-emption problems; rather than providing an
affirmative authorization to use marijuana, it instead prohibited the state and its
agents from taking any action that would restrict patients’ use of medical marijuana
pursuant to the AMMA.
Of course, Arizona was not alone; rather, Arizona was part of a nationwide
movement that continues to grow from coast to coast. At the time of the submission
of this brief, 23 states and the District of Columbia have passed laws protecting
medical marijuana patients. Momentum continues to build with 12 more states
expected to enact medical marijuana programs by 2019. 11 additional states have
limited medical marijuana programs that allow use of Cannabidiol, a component of
the marijuana plant. Voter initiatives in four states (Colorado and Washington in
2012 and Oregon and Alaska in 2014) have legalized recreational use and sale of
marijuana. In the last several years, none of the many state voter initiatives seeking
to legalize marijuana use in some form has failed to achieve a majority vote.
In recognition of this nationwide movement, and in deference to democracy
and federalism principles, the U.S. Department of Justice has adopted non-
enforcement policies that promise not to use the Federal Controlled Substances Act
to prosecute medical marijuana patients, caregivers, and dispensaries. First, on
August 29, 2013, the Department of Justice, Office of the Deputy Attorney General
James M. Cole, issued a “Memorandum for All United States Attorneys – Guidance
3
Regarding Marijuana Enforcement.” The memorandum announced an expansive
non-enforcement policy in deference to state medical marijuana programs and
declined to interfere with state recreational marijuana programs.
More recently, on December 13, 2014, Congress approved legislation rolling
back the federal government’s war on medical marijuana patients and providers. The
law includes an amendment that prohibits the Department of Justice (including the
Drug Enforcement Administration) from using funds to interfere with state medical
marijuana laws.1 Thus, the legality of medical marijuana use has reached its tipping
point at both a state and federal level. Penalizing medicinal use of marijuana is fast
becoming a thing of the past throughout America. Obstinate government officials
like the Yavapai County Attorney are on the wrong side of history.
The purpose of the AMMA was made clear from the outset. Section 2(G) of
Proposition 203 states quite plainly that:
State law should make a distinction between the medical and
nonmedical uses of marijuana. Hence, the purpose of this act is to
protect patients with debilitating medical conditions, as well as their
physicians and providers, from arrest and prosecution, criminal and
other penalties and property forfeiture if such patients engage in the
medical use of marijuana. (emphasis added).
This purpose is codified in A.R.S. § 36-2811(B)(1), which provides immunity to
1 Evan Halper, “Congress quietly ends federal government’s ban on medical
marijuana,” Los Angeles Times, Dec. 16, 2014, http://www.latimes.com/nation/la-
na-medical-pot-20141216-story.html (last visited January 2, 2015).
4
registered patients as follows:
A registered qualifying patient… is not subject to arrest, prosecution or
penalty in any manner, or denial of any right or privilege, including any
civil penalty or disciplinary action by a court or occupational or
professional licensing board or bureau… [f]or the registered qualifying
patient's medical use of marijuana pursuant to this chapter, if the
registered qualifying patient does not possess more than the allowable
amount of marijuana.
Thus, Arizona’s new public policy ushered in by the AMMA unequivocally
legitimizes marijuana as medicine and shields registered patients from exposure to
“criminal and other penalties” that would otherwise result from their marijuana use.
Viewing the AMMA as a whole, the clear intent of the voters was to provide
a comprehensive immunity from denial of “any” right or privilege to “any”
qualifying registered patient or caregiver, except for limited, enumerated locations,
without regard to one’s status as being convicted of a crime. For example, possession
is specifically precluded in a correctional facility. A.R.S. § 36-2802(B)(3).
Marijuana may not be smoked in a “public place.” A.R.S. § 36-2802(C)(2).
Employers are permitted to take adverse action against employees who are found to
be in possession or under the influence of medical marijuana while on the job. A.R.S.
§ 36-2813(B)(2). No such exception is found, however, in the AMMA that would
exclude patients from immunity while on probation, and the plain language of the
AMMA prohibits any State actor – whether a court or a prosecutor – from interfering
with a medical marijuana patient’s access to medication.
5
ARGUMENTS
I. YCAO’s position is precluded by the Voter Protection Act and it is
wholly unsupported by federal preemption doctrine.
YCAO’s preemption argument is wholly meritless for the reasons set out in
RPI Ferrell’s supplemental brief; amici will not rehash those arguments here. Amici
notes some logical fallacies in YCAO’s arguments. First, besides offering a couple
of choice quotes from Arizona v. United States, 132 S.Ct. 2492 (2012), and Crosby
v. National Foreign Trade Council, 530 U.S. 363 (2000), Response to Amicus, p.13,
YCAO has yet to explain how Congress has expressed or implied an intent to occupy
the field of regulating marijuana. Arizona’s mere passage of a contrary law does not
per se cause interference with the federal government’s enforcement of its own laws.
Second, it is illuminating that YCAO has never tried to reconcile its position with
the DOJ memorandum, and it filed no supplemental brief explaining what is left of
its preemption argument after the recent Congressional legislation.
At no time has the Yavapai County Attorney’s Office (“YCAO”) argued in
this litigation that the voters had no power to enact the AMMA. Nor has YCAO
argued that its desired outcome in this litigation in any way furthers the voters’ intent
in passing the AMMA. YCAO has made a half-hearted statement, supported by no
authority, that YCAO “disagrees with Amicus Curiae that there is any language
within the AMMA that indicates the voters considered the impact of the Act on a
6
trial court’s jurisdiction over probationers.” Response to Amicus, p.2.
YCAO seems to be suggesting that the AMMA is ambiguous on this point,
but even a cursory review of this Court’s cases on the subject shows the error of such
an argument. In Arizona Clean Elections Comm’n v. Brain, 234 Ariz. 322, 322 P.3d
139 (2014), both the majority and dissenting opinions agreed that the Citizens Clean
Elections Act enacted in 1998 was ambiguous in terms of its fixation of contribution
limits for nonparticipating candidates at 80% of the limits in A.R.S. § 16-905
because it did not specify whether it was referring to the limits in place at the time
of passage of the CCEA or the limits as modified by the legislature. The AMMA, on
the other hand, suffers no such lack of clarity and thus there is no need to resort to
the kind of gamesmanship that YCAO seems to be inviting. “Our primary objective
in interpreting a voter-enacted law is to effectuate the voters’ intent.” Id. at 324-25
¶ 11, 322 P.3d at 141-42 (citing Ariz. Early Childhood Dev. & Health Bd. v. Brewer,
221 Ariz. 467, 470 ¶ 10, 212 P.3d 805, 808 (2009)). “If the statute is subject to only
one reasonable interpretation, we apply it as written without further analysis.” Id.
YCAO relies on California cases for the proposition that trial courts are no
more restricted from prohibiting use of medical marijuana than they are any other
lawful activity. Response to Amicus, p.3 (quoting People v. Leal, 210 Cal. App. 4th
829, 848, 149 Cal. Rptr. 3d 9, 23-24 (2012), quoting in turn People v. Mentch, 45
Cal. 4th 274, 286 n.7, 85 Cal. Rptr. 3d 480 (2008)).
7
There are many reasons why Leal and other California cases are inapposite in
Arizona. First, the “delicate tightrope” referenced in Mentch and the other California
cases is ensuring that people engage in personal use of medical marijuana and not
use the law as an “open Sesame” for offenses like transportation for sale. See, e.g.,
People v. Trippet, 56 Cal. App. 4th 1532, 1546, 66 Cal. Rptr. 2d 559, 568 (1997).
Second, California law specifically addresses the use of marijuana by
defendants on bail as well as probationers:
We address next the parties’ supplemental briefing on whether a
sentencing court may utilize the MMP’s section 11362.795, on its own
motion, or otherwise inquire into a defendant’s right and need to use
medical marijuana under the CUA. We inquired about this, in part,
because the statute speaks not of a court, but a “probationer,” or
“defendant” on bail, requesting confirmation of CUA use: “(a)(1) Any
criminal defendant who is eligible to use marijuana pursuant to
Section 11362.5 [(the CUA)] may request that the court confirm that
he or she is allowed to use medical marijuana while he or she is on
probation or released on bail. [¶] (2) The court’s decision and the
reasons for the decision shall be stated on the record and an entry stating
those reasons shall be made in the minutes of the court. [¶] (3) During
the period of probation or release on bail, if a physician recommends
that the probationer or defendant use medical marijuana, the
probationer or defendant may request a modification of the conditions
of probation or bail to authorize the use of medical marijuana. [¶] (4)
The court’s consideration on the modification request authorized by
this subdivision shall comply with the requirements of this section.” (§
11362.795, subd. (a)(1)–(4).) Parallel language authorizes a parolee to
request confirmation. (Id., subd. (b)(1)–(4).)
Id. at 846, 149 Cal. Rptr. 3d at 22 (emphasis added). This single section of the statute
references probationers no less than five times. The paragraph immediately
following that quoted by YCAO states:
8
Unlike the CUA, the MMP, which was enacted by the Legislature,
expressly contemplates medical marijuana use by a probationer.
However, while the MMP provides that a probationer (or bailee) may
ask to have his or her CUA status judicially confirmed (§ 11362.795),
the MMP does not in any way diminish the court's authority and
discretion to limit or proscribe lawful conduct under the Lent test. The
Lent test is a settled judicial measure of which the Legislature is
presumed to be aware when it acts; it is therefore expected to specify
any intent to limit its application. As the MMP contains no such
specification, we have no basis upon which to suspend application of
the Lent test in the medical marijuana use context.
Id. at 848, 149 Cal. Rptr. 3d at 24 (internal cites omitted). This section shows that
the legislature amended the voter-enacted Compassionate Use Act. Thus, YCAO’s
statement that “like the CUA, the AMMA does not reference probationers,”
Response to Amicus, p.3, is misleading because California statute, through the MMP,
does reference probationers.
Third, the California legislature is permitted to amend voter-approved
initiatives, because California does not have a Voter Protection Act as Arizona does.
The Arizona Constitution specifically precludes any amendment to a voter-approved
initiative that does not “further[] the purposes of such measure.” Ariz. Const. art. IV,
pt. 1, § 1(6)(C); Cave Creek Unified School Dist. v. Ducey, 233 Ariz. 1, 4 ¶ 8, 308
P.3d 1152, 1155 (2013); Ariz. Early Childhood Dev. & Health Bd. v. Brewer, 221
Ariz. 467, 469 ¶ 7, 212 P.3d 805, 807 (2009). This Court has found even minor
modifications to a constitutional provision to be a conflict repugnant to the Arizona
Constitution. Dobson et al. v. State ex rel. Comm’n on Appellate Court
9
Appointments, 233 Ariz. 119, 309 P.3d 1289 (2013). The same is no less true for
voter-enacted laws. Thus, if the Arizona Legislature attempted to enact amendments
similar to those of the California legislature, this Court would be required to strike
down such legislation as violating the VPA.
Finally, unlike the Compassionate Use Act of California, the AMMA
anticipated the full panoply of potential adverse consequences that a medical
marijuana user might be made to suffer and prohibits them all:
A registered qualifying patient or registered designated caregiver is not
subject to arrest, prosecution or penalty in any manner, or denial of any
right or privilege, including any civil penalty or disciplinary action by
a court or occupational or professional licensing board or bureau…
A.R.S. § 36-2811(B). The only limitations on medical marijuana use are provided
within § 36-2802.
As shown in AACJ’s brief in support of granting review, the VPA is a direct
result of the state’s executive and legislative branches’ past transgressions against
the will of the people by undermining the public policy established by the voters,
specifically legalization of medical marijuana. Regardless of the beliefs or
suspicions held by government officials that the AMMA is really just cover for
recreational use, the plain language of the findings in Section 2 of Proposition 203
show that the voters decided that marijuana is in fact medicine. The Yavapai County
Attorney wants people to “think again” about the harmlessness of marijuana, but she
cannot usurp the policymaking function of the initiative process.
10
II. The Oath of Office for Public Officials, when combined with the 2014
voter-enacted amendment to the Supremacy Clause of the Arizona
Constitution, expressly forbids State agents from using State
personnel and financial resources to uphold federal law when doing so
is contrary to the will of the Arizona electorate.
YCAO also asserts that the oath of office for executive and judicial officers
to uphold and support the United States Constitution and federal laws as the supreme
Law of the Land forecloses any further consideration of the issues herein. This
argument is belied by two points that YCAO has implicitly conceded: it has not
argued that the voters had no right to enact the AMMA, and it has failed to rebut the
argument made throughout this litigation that no court in the country (state or
federal) has found removal of state penalties under a state medical marijuana law to
be preempted.2 YCAO cites federal cases upholding federal law, but it fails to grasp
that this litigation is about applying state law. YCAO has never addressed Section
2(F) of Proposition 203: “States are not required to enforce federal law or prosecute
people for engaging in activities prohibited by federal law. Therefore, compliance
with this act does not put the state of Arizona in violation of federal law.”
2 The Oregon Supreme Court found a portion of that state’s act preempted “to the
extent that ORS 475.306(1) authorizes the use of medical marijuana… We note that
our holding in this regard is limited to ORS 475.306(1); we do not hold that the
Controlled Substances Act preempts provisions of the Oregon Medical Marijuana
Act that exempt the possession, manufacture, or distribution of medical marijuana
from state criminal liability.” Emerald Steel Fabricators, Inc. v. Bureau of Labor
and Industries, 230 P.3d 518, 536 (Or. 2010).
11
A.R.S. § 38-231(E) states the language of the oath that each state officer must
take before assuming office: “I, [name], do solemnly swear (or affirm) that I will
support the Constitution of the United States and the Constitution and laws of the
State of Arizona … and that I will faithfully and impartially discharge the duties of
the office…” (emphasis added). Nowhere in this oath can YCAO find support for its
desire to uphold federal prohibitions on marijuana. Instead, YCAO is violating the
oath by refusing to uphold the AMMA and by undermining it at every turn.
YCAO’s position that prosecutors are free to insert into all its plea offers a
provision that strips the protections of the AMMA plainly violates the Oath. There
is no exception in this Oath that permits a particular county attorney to pick and
choose which State laws to uphold based on personal “philosophy.” In fact, if
YCAO’s position were adopted by this Court, Arizona residents in a county where
the county attorney has decided to uphold the AMMA would be granted full rights
under the AMMA while probationers in Yavapai would be treated markedly
differently. Thus defendants in Yavapai would be denied the rights and privileges
afforded by the AMMA. This would violate the dictate of article II, § 13 of the
Arizona Constitution that “No law shall be enacted granting to any citizen, class of
citizens, or corporation other than municipal, privileges or immunities which, upon
the same terms, shall not equally belong to all citizens or corporations.”
12
YCAO’s arguments about the oath and pre-emption are further undermined
by the recent passage of Proposition 122, an amendment to the Supremacy Clause
of the Arizona Constitution.3 Previously, Ariz. Const. art. II, § 3 simply read: “The
Constitution of the United States is the supreme law of the land.” Now it reads:
Section 3. A. The Constitution of the United States is the supreme law
of the land to which all government, state and federal, is subject.
B. To protect the people’s freedom and to preserve the checks and
balances of the United States constitution, this state may exercise its
sovereign authority to restrict the actions of its personnel and the use of
its financial resources to purposes that are consistent with the
constitution by doing any of the following:
1. Passing an initiative or referendum pursuant to article IV, part 1,
section 1.
2. Passing a bill pursuant to article IV, part 2 and article V, section 7.
3. Pursuing any other available legal remedy.
C. If the people or their representatives exercise their authority pursuant
to this section, this state and all political subdivisions of this state are
prohibited from using any personnel or financial resources to enforce,
administer or cooperate with the designated federal action or program.
The new language of section 3 does not interfere with the federal government’s
supremacy, only with the federal government’s ability to obtain support from an
unwilling state government in financing the bidding of the federal government.
One of the unanswered questions is whether section 3 will be applied to voter
initiatives that were enacted prior to 2014. The VPA applies to all initiatives passed
3 http://www.azsos.gov/election/2014/General/Canvass2014GE.pdf (last visited
December 29, 2014).
13
at or after the 1998 general election. Arizona Clean Elections Comm’n, 233 Ariz. at
323 ¶ 4, 322 P.3d at 140. The language of the competing voter protection acts on the
1998 ballot, Propositions 1044 (referred by the legislature) and 1055 (initiated by the
voters), demonstrates that both the legislature and the people know how to limit the
scope of a law to prospective application. One of the criticisms provided in an
argument opposing Proposition 105 and favoring a different voter protection act in
Proposition 104 was that Proposition 105 failed to protect existing initiatives. Since
the language in Proposition 122 – which was referred by the legislature – does not
limit the scope of its applicability to prospective application, and nothing in the
analysis by the legislative council suggests only prospective application, the plain
language requires application to voter initiatives passed at previous elections, such
as the AMMA in 2010.
The plain language of article II, section 3(C) prohibits “this state and all
political subdivisions of this state” – which includes YCAO – “from using any
personnel or financial resources to enforce, administer or cooperate with the
designated federal action or program” that is contrary to state law and state public
4 http://www.azsos.gov/election/1998/info/pubpamphlet/Prop104.html (last visited
January 1, 2015). 5 http://www.azsos.gov/election/1998/info/pubpamphlet/Prop105.html (last visited
January 1, 2015).
14
policy as determined through a voter initiative. All of the YCAO attorneys engaged
in this litigation are violating the Arizona Constitution and their oath to uphold it.
III. The AMMA bars government actors from taking “any” action to deny
patients access to medical marijuana. This precludes prosecutors from
including, and courts from honoring, special terms in plea agreements
coercing a “waiver” of rights under the AMMA, because such plea
provisions are illegal and unenforceable.
As a general matter, “the courts have no power to interfere with the discretion
of the prosecutor unless he is acting illegally or in excess of his powers.” State v.
Murphy, 113 Ariz. 416, 418, 555 P.2d 1110, 1112 (1976). This broad concept does
not mean, as the State suggests, that a prosecutor has unfettered discretion to write
into plea agreements provisions that violate the spirit and letter of Arizona law and
public policy based on the prosecutor’s “personal philosophy.”
While it is true that contract principles may be instructive in interpreting plea
agreements, blind application of contract principles to plea agreements is not
appropriate. Courts are “not always obligated to apply a contract analysis to plea
agreements because contract law may not provide a sufficient analogy.” Coy v.
Fields, 200 Ariz. 442, 445 ¶ 9, 27 P.3d 799, 802 (App. 2001) (citing United States
v. Carrillo, 709 F.2d 35, 36 (9th Cir. 1983) (“…Cases may arise in which the law of
contracts will not provide a sufficient analogy and mode of analysis. We do not
purport to superimpose contract principles upon all such cases.”)).
15
Because prosecutors have undertaken an oath to apply the spirit and letter of
Arizona law and to follow Arizona’s public policy, provisions included in a plea
agreement that violate law or public policy are unenforceable. Moreover, the State
is undeniably in a stronger bargaining position when it comes to plea bargains with
defendants facing sentencing under Arizona’s mandatory sentencing laws. The fact
that the prosecutor takes an oath to uphold the law necessarily means that the State
is held to a higher understanding of the law. For this reason, the State may not
withdraw from a plea based on an illegal or unenforceable term included in the plea.
Rather, “the state bears the risk when, as here, a sentencing or probation provision
in one of its plea agreements proves to be illegal and unenforceable.” Coy, 200 Ariz.
at 446 ¶ 13, 27 P.3d at 803.
For example, this Court has held plea agreement provisions that require a
defendant to testify “consistently with prior testimony” unenforceable because
enforcement would enhance “‘the prosecutor’s power to persuade an accomplice to
disregard his oath of truthfulness in order to obtain penal leniency. This use of the
bargaining process by the prosecution perverts the truth-seeking purpose of the
judicial system.’” State v. Fisher, 176 Ariz. 69, 74, 859 P.2d 179, 184 (1993)
(quoting Yvette A. Beeman, Note, Accomplice Testimony Under Contingent Plea
Agreements, 72 Cornell L. Rev. 800, 824 (1987)). Such a result is a violation of both
law and public policy. See State v. Sanchez-Equihua, 235 Ariz. 54, 57 ¶ 12, 326 P.3d
16
321, 324 (App. 2014) (holding the consistency clauses at issue “taint[ed] the truth-
seeking function of the court[ ] by placing undue pressure on [the] witnesses to stick
with one version of the facts regardless of its truthfulness”) (citing Fisher, 176 Ariz.
at 74, 859 P.2d at 184).
Similarly, provisions in plea agreements that require imposition of a sentence
harsher than allowed by statute are unenforceable. State v. Corno, 179 Ariz. 151,
155, 876 P.2d 1186, 1190 (App. 1994) (citing Rule 17.4(d) and State v. Oatley, 174
Ariz. 124, 125, 847 P.2d 625, 626 (App. 1993)) (“the trial court is not bound by any
sentencing provision in a plea agreement it finds inappropriate.”). Likewise, the
State may not control the term of probation because probation is solely under the
jurisdiction of the court. State v. Patel, 160 Ariz. 86, 89, 770 P.2d 390, 393 (App.
1989). Patel is particularly applicable here. There, the Court of Appeals held “that
the state and a defendant may not bind the trial court to a fixed period of probation”
because “[s]uch an effort is prohibited by statute, court rule, and public policy.”
Moreover, “[i]t infringes on the court's jurisdiction and authority over probationers
in general.” 160 Ariz. at 89, 770 P.2d at 393.
Regardless of general contract principles that may apply in a civil context,
provisions in plea agreements may be deemed unenforceable if the sentencing court
finds them “inappropriate.” Ariz. R. Crim. P. 17.4(d) (a trial court “shall not be
bound by any provision in the plea agreement regarding the sentence or the term and
17
conditions of probation to be imposed, if, after accepting the agreement and
reviewing a presentence report, it rejects the provision as inappropriate.”). Even in
a civil context, under general contract principles, “[c]ontract provisions are
unenforceable if they violate legislation or other identifiable public policy.” 1800
Ocotillo, LLC v. WLB Grp., Inc., 219 Ariz. 200, 202 ¶ 7, 196 P.3d 222, 224 (2008).
This Court has just reaffirmed this principle. CSA 13-101 Loop, LLC v. Loop
101, LLC, CV-14-0029-PR, ¶ 6 (Ariz. S. Ct., Dec. 31, 2014) (citing Ocotillo and
Restatement (Second) of Contracts § 178 for principle that “if a contractual term is
not specifically prohibited by legislation, courts will uphold the term unless an
otherwise identifiable public policy clearly outweighs the interest in the term’s
enforcement.” (emphasis added)). “Even when not expressly prohibited, contract
terms may be invalidated ‘if the legislature makes an adequate declaration of public
policy which is inconsistent with [them].” Id. ¶ 8 (quoting Shadis v. Beal, 685 F.2d
824, 833-34 (3d Cir. 1982)). In the context of civil contracts, this Court decided that
“the identifiable public policy served by A.R.S. § 33-814(A) clearly outweighs the
interest in enforcing prospective waiver terms” and thus held the contractual terms
unenforceable. Id. ¶ 24.
The language of the AMMA bars the State from taking “any” action that will
interfere with a registered patient’s access to medical marijuana except in certain
enumerated locations. In Reed-Kaliher v. Hoggatt, the Court of Appeals correctly
18
held that the express language of A.R.S. § 36-2811(B) prohibits “‘any state actor’
from ‘den[ying] . . . any right or privilege’ to a ‘registered qualifying patient,’” which
language necessarily “prevent[s] state actors from conditioning any state benefit on
the waiver of AMMA rights.” 235 Ariz 361, 366 n.3, 332 P.3d 587, 592 n.3 (App.
2014) (emphasis added). As Division Two noted, allowing prosecutors or courts to
exact a “waiver” of AMMA rights to obtain the privilege of probation threatens to
open a Pandora’s box of “waivers” required to obtain any government benefits, but
the voters of Arizona passed a broad, bright-line rule banning any state actors from
denying any right or privilege precisely to prevent this erosion of a patient’s lawful
access to medical marijuana.
Because the AMMA bars “any” action by the State to interfere with the rights,
privileges, and immunities afforded by the AMMA, these rights afforded by the
AMMA differ substantively from other waiver provisions in plea agreements. For
example, a defendant may waive constitutional rights to a jury trial or a restitution
hearing, both of which are rights that belong to a defendant that the defendant may
choose to invoke. In contrast, the AMMA bars state actors from taking “any” action
to deny the defendant his or her rights and immunities. This bar is akin to a restriction
on the subject matter jurisdiction of the prosecutor and the court. Requiring a
defendant to waive AMMA immunities and rights for the privilege of a probation-
available plea constitutes an affirmative act by a state actor to deny the privileges
19
and rights under the AMMA, and this violates both the spirit and plain language of
A.R.S. § 36-2811(B), and as such, also violates Arizona’s public policy as set forth
by the voters.
Given that a high number of public officials with authority over defendants
have made clear their desire to ban marijuana use in all forms, any decision by this
Court that permits regulation of medical use of marijuana via provisions in plea
agreements or conditions of probation will inevitably result in some officials
creating a framework for disallowing medication for all but the smallest number of
people in their respective jurisdictions. In this case, YCAO has stated an
unmistakable position that the number of people who should be permitted to use
medical marijuana is zero.
CONCLUSION
Courts are not accustomed to holding that trial judges lack discretion to
impose conditions of probation that might otherwise appear reasonably related to the
rehabilitation of the probationer. Reed-Kaliher, 235 Ariz. at 367 ¶ 23, 332 P.3d at
593 (quoting United States v. Knights, 534 U.S. 112, 119 (2001)). Division Two
rightly recognized that medical marijuana is set apart from all other otherwise lawful
activity that may be prohibited as a condition of probation because there is no statute
that expressly protects those other activities. Id. This Court should affirm the well-
reasoned opinion in Reed-Kaliher. In so doing, trial judges will understand the limits
20
of their jurisdiction when crafting a sentence.
Also needed is a signal to trial judges not to consider a defendant’s medical
use of marijuana when deciding upon a sentence. In many cases, the sentencing
judge has discretion whether to impose a prison sentence or suspend the sentence
and grant probation; and even when granting probation, the judge has discretion to
impose up to one year in the county jail as a condition of probation. Amici are aware
of cases in this state where judges have imposed prison sentences where probation
would otherwise be appropriate based solely on a remark in the pre-sentence report
that the defendant is a medical marijuana user. Such a decision can only be construed
as a “penalty” for using marijuana consistently with the AMMA, a practice that is
prohibited within the plain language of A.R.S. § 36-2811(B). In other cases, judges
have required that patients with severe chronic pain should use opiates (regardless
of potential addiction issues) rather than marijuana to treat their ailments. These
decisions also undermine the public policy purpose of the AMMA.
Amici ask this Court to honor the will of the voters, as Division Two did in
Reed-Kaliher, and hold that patients may not be penalized for their medicinal use of
marijuana. The opinion in this case should be vacated.
21
RESPECTFULLY SUBMITTED this 2d day of January, 2015.
ARIZONA ATTORNEYS FOR NATIONAL ORGANIZATION FOR THE
CRIMINAL JUSTICE REFORM OF MARIJUANA LAWS
BY: /s/ David J. Euchner BY: /s/ David J. Euchner, for
David J. Euchner, No. 021768 Thomas W. Dean, No. 015700
[email protected] [email protected]
Sarah L. Mayhew, No. 029048 13201 N. 35th Ave., Suite B-10
[email protected] Phoenix, AZ 85029
33 N. Stone Ave., 21st Floor (602) 635-4990
Tucson, Arizona 85701 Attorney for National Organization for the
(520) 724-6800 Reform of Marijuana Laws
Attorneys for Arizona Attorneys
for Criminal Justice